Jammu & Kashmir High Court
Sandeep Singh vs Union Territory Of J&K on 4 August, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 252
(After Notice Cause list)
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 703/2019
CrlM No. 1666/2019
c/w
Bail App 234/2019
Sandeep Singh .....Appellant(s)/Petitioner(s)
Through: Mr. P. N. Bhat, Sr. Advocate with
Mr. J. A. Hamal, Advocate
Vs
Union Territory of J&K ..... Respondent(s)
Through: Mr. Suneel Malhotra, GA
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The petitioner has filed the present petition for quashing the FIR No 22/2019 registered with Police Station, Chatroo for commission of offences initially registered under Sections 376 RPC and also entire proceedings arising out of the FIR mentioned above, in the form of challan for commission of offences under sec 376,323 and 506 R.P.C, including the order dated 24.12.2019, by virtue of which charge for commission of offences under sec. 376,323 and 506 R.P.C has been framed against the petitioner by the Court of Learned Sessions Judge, Kishtwar (herein after referred to as trial court) .
2. The petitioner has filed the instant petition on the grounds inter alia that the story put forth in the FIR is false and concocted, the prosecutrix in her testimony recorded under Section 164-A Cr.P.C has clearly stated that she had a relationship with the petitioner for more than four years and she was always having the knowledge that the petitioner was married and in her said statement there is no mention that she was raped on the day of occurrence and further that 2 CRM(M) 703/2019 the learned trial court has framed charges without there being any material for framing of charges for commission of offence under Section 376 RPC.
3. Response stands filed, in which besides narrating the factual facts it has been stated that the present petition is misconceived and deserves to be dismissed as the Court cannot appreciate the evidence while considering the issue of charge/discharge and the Learned trial court has rightly framed the charge against the petitioner.
4. Mr. Raina, learned senior counsel has vehemently argued that there is absolutely no evidence with regard to the commission of offence of rape and the perusal of statement of the prosecutrix would show that no rape was committed on the day of occurrence. He further submits that assuming the statement of the prosecutrix recorded under Section 164-A Cr.P.C to be true, even then no offence under Section 376 R.P.C is made out, as she had indulged in to relations with the petitioner knowing well that the petitioner was married and the petitioner never made any complaint with regard to the commission of offence of rape for the four long years. He further submits that the learned trial court without any evidence has framed the charge against the petitioner.
5. In support of his contention, Mr. Raina learned senior counsel places reliance upon the decisions of Apex Court in case titled Prashant Bharti vs. State of NCT of Delhi, 2013 (9) SCC 309, Pramod Surabhan Pawar vs. State of Maharashtra and another, 2019 (9) SCC 608.
6. Per contra, Mr. Malhotra, learned GA vehemently contends that this Court cannot appreciate evidence while adjudicating upon an issue with regard to charge/discharge and the Learned trial court has rightly framed the charge against the petitioner.
3 CRM(M) 703/2019
7. Heard learned counsel for the parties and perused the material on record.
8. The brief facts necessary for disposal of the present petition are that on 13.06.2019, SPO Sri Chand posted at Police Station, Mughalmaidan produced a DD extract No.16 dated 13.06.2019, in which it was stated that one XXXX S/o XXXXX R/o XXXXXX lodged a written report at Police Station, Mughalmaidan stating that on 12.06.2019 at about 2100 hours that his daughter went out from her house for attending nature's call and did not return back. At about 2300 hours one Sandeep Kumar S/o Dhani Ram Thakur R/o Gangna Tagood, Tehsil Mughalmaidan called him on phone that his daughter was lying in an unconscious condition in a newly constructed house of the complainant. He along with his wife and son-in-law rushed on spot, where the prosecutrix was lying in an unconscious condition and she slowly murmured that she was forcibly raped by the petitioner. Thereafter, the prosecutrix again got unconscious. The prosecutrix was admitted at District Hospital, Kishtwar. On the basis of this D.D extract, FIR bearing No. 22/2019 dated 13.12.2019 was registered for commission of offence under Section 376 Cr.P.C.
9. During the course of investigation, the statement of the prosecutrix was recorded under Section 164-A Cr.P.C as also medical report with regard to the prosecutrix was obtained. After the completion of the investigation, challan was filed against the petitioner for commission of offence under sec 323,376,506 R.P.C. The learned trial court after hearing the arguments on charge/discharge vide order dated 24.12.2019 framed the charges for commission of offences under Sections 376, 323 and 506 RPC.
10. The statement of the prosecutrix under Section 164-A Cr.P.C was recorded on 19.06.2019 and is reproduced as under:-
4 CRM(M) 703/2019 "Name of victim hidden, D/o XXXXX R/o XXXX, occupation Khanadari, Aged 25 years, sated that she knows Sandeep Kumar from the last four years. He is a resident of our village. However, for the last four years he has been committing rape with her and has been saying to her that he will marry with her. She told him that he was already married, however he said that this is not her responsibility and told her that in case she will marry somewhere else, then he will kill that person with whom she will marry and also her. Sandeep Kumar after threatening has been calling her on telephone and thereafter had been committing rape with her. Whenever Sandeep Kumar used to come on leave at his home, then he used to call her and then commit rape with her. She changed her phone number 2/3 three times, but accused after tracing her phone number, used to call her. On the day of occurrence accused at about 9/9.30 PM called her on phone and at that time she was in her room. He told her on phone to come out side or else he will come inside. On this she thought that if her family members will come to know about this, they will kill her, so she came out side. There Sandeep Kumar caught hold of her arm and took her away from her house and there assaulted her and pressed her neck. He made her to smell something and she felt unconscious. In unconscious state, what was done by him with her, she does not know. She gained consciousness in hospital Kishtwar."
11. As per the mandate of sections 268 and 269 of Cr. P.C(now 224 and 225), while considering the issue of framing charge/discharge of the accused, the trial court has to form opinion on the basis of material placed on record by the Investigating Officer as to whether there is sufficient ground for presuming that the accused has committed an offence or not. The material on 5 CRM(M) 703/2019 record would constitute the statement of witnesses, medical report along with other material relied upon by the prosecution. At this stage, the trial court cannot indulge in critical evaluation of the evidence, as can be done at the time of final appreciation of evidence after the conclusion of trial but the charge can be framed against the accused even when there is strong suspicion about the commission of offence by the accused. At the same time the trial court is not expected to merely act as post office and frame the charge just because challan for the commission of a particular offence has been filed against the accused. The trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfills the ingredients of offence or not. If the ingredients of any offence are lacking, then the Court has no option but to discharge. The Hon'ble Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, reported in (2019) 16 SCC 547 has held as under:
"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong
6 CRM(M) 703/2019 suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
12. Now this court would test the contentions raised by the petitioner on the parameters of law laid down by Apex Court. From the statement of the prosecutrix, it is evident that she has not stated anything with regard to the commission of rape on the date of alleged occurrence i.e. 12.06.2019 particularly and it assumes significance also because her statement was recorded just after 07 days of the occurrence. She has simply stated that on 12.06.2019 the petitioner got hold her arm and took away from her house and thereafter assaulted her and pressed her neck. He made her to smell thing and she felt unconscious. Thereafter she does not know as to what was done by the petitioner. Even the Investigating Officer in his final report under sec 173 Cr.P.C has stated that as per medical report, allegation of rape has not been established. Even in the charge framed by the Learned trial court on 24-12-2019 it has been mentioned that "You had been committing rape with the prosecutirx for the last 4 years by asserting that you would marry her and further you had been threatening her that in the event she married somewhere else, you would kill her as well as the person with whom she would marry. Further you on 12.06.2019, called the prosecutrix on phone and as she came out you caught hold of her hand and took her away and assaulted her. Further you made her smell something as a result of which she got unconscious". Thus there is no allegation even in the charges framed by the court with regard to commission of offence of rape on 12.06.2019 and rightly so as there was no evidence with regard to that and even medical report with regard to the examination of the petitioner, who was examined by doctor on 7 CRM(M) 703/2019 13.06.2019 clearly states that there was no recent sexual intercourse. Now it is only to be examined as to whether in such circumstances the charge for commission of offence under sec. 376 RPC can be framed or not particularly in view of the statement of the prosecutrix that she was raped by the petitioner for 4 years and he was telling her that he would marry her, particularly when she was having knowledge that the petitioner was already married.
13. In Pramod Suryabhan Pawar v. State of Maharashtra, reported in (2019) 9 SCC 608, the Apex Court quashed the FIR by observing as under:
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.
19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:
19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004.
19.2. The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant. 19.3. The appellant expressed his reservations about marrying the complainant on 31-1-2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.
20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.
21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is 8 CRM(M) 703/2019 no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred."
14. Further the Apex Court in Sonu @ Subhash Kumar vs. State of Uttar Pradesh and another, reported in 2021 (2) JKJ (SC) 337, has referred to following three important aspects while quashing the charge sheet:
"i. The relationship between eh appellant and the second respondent was of a consensual nature;
ii. The parties were in the relationship for about a period of one and half year; and iii. Subsequently, appellant had expressed disinclination to marry the second respondent which led to the registration of F.I.R"
15. Thus law is well settled that when there is allegation that the sexual relationships were made on the basis of false promise of marriage, then it has to be established that promise of marriage was a false promise, given in bad faith and with no intention of being adhered to at the time it was given. In the instant case, the prosecutrix indulged in to sexual relationship knowing very well that the petitioner was already married and for all these four years she never made any complaint with regard to the rape committed by the petitioner. More so, it is not the case of the prosecution that the petitioner portrayed himself as an unmarried man and then indulged in to sexual relationship with the petitioner. In that case, certainly he would have been liable for offence of cheating and rape.
9 CRM(M) 703/2019
16. Thus in view of present facts and circumstances the charge for commission offence under sec. 376 RPC cannot be framed against the petitioner but there is evidence on record that the prosecutrix was beaten and threatened by the petitioner. As such, the petition is partly allowed and the order dated 24.12.2019 to the extent of framing charge for commission of offence under sec 376 RPC is set aside and the trial for the other offences shall continue.
17. Petition is disposed of, accordingly.
Bail App 234/2019
As the order of framing of charge with regard to the offence under sec 376 RPC stands set aside, the other offences are bailable, the petitioner shall approach the trial court for seeking bail.
(Rajnesh Oswal) Judge Jammu 04.08.2021 Bir Whether the order is speaking: Yes Whether the order is reportable: Yes